Whose Kidney is it Anyway?
Friday, December 29, 2006 at 10:29PM Whose Kidney is it Anyway? The New York Court of Appeals issued a ruling last week on an extraordinary case involving the directed donation of a kidney that went horribly wrong.
As the New York Sun reported today:The case decided yesterday involves two childhood friends from the Bronx. When one of them, died of a stroke on Long Island in 2002, his widow donated his kidneys to the other, Robert Colavito, who was ill with renal disease in Florida. One kidney made it to Colavito, but a doctor found that it was damaged, according to court documents. When Colavito asked for the second kidney, he was told it had already been transplanted into another person.
Colavito filed suit against the New York Organ Donor Network demanding $60 million for his loss of the second kidney, but the Court of Appeals dismissed his claim, deciding that he had no right to the kidney.
The Court decided against Colavito largely because it turned out that the donor's kidneys were medically incompatible with Colavito and were, therefore, of no value. But the decision is worth reading for the historical context that led to the judges' conclusion that property rights cannot be assigned to one's organs. Referencing precedents that dealt exclusively with improper autopsy or disposal of a corpse, the Court concluded:Considering, however, that the "no property right" jurisprudence was developed long before the age of transplants and other medical advances, we need not identify or forecast the circumstances in which someone may conceivably have actionable rights in the body or organ of a deceased person. For purposes of this case it is enough to say, in answer to the first part of the first certified question, that plaintiff, as a specified donee of an incompatible kidney, has no common law right to the organ.
Left unresolved, of course, is the question: Who does have property rights over the kidneys in question? (anyone willing to bet how the NKF or UNOS answers that one?) The kidneys have value. Indeed, they have live saving value. But the court relies upon historical precedent dealing exclusively with emotional loss, failing to take into account the true value of the donor's life-saving organs.
The case would have been groundbreaking if the kidneys had been compatible with Colavito and he had suffered actual loss from the NYODN's decision to ship only one kidney to Florida. But it's not difficult to foretell a similar case occurring soon that results in a fight over a compatible kidney that was meant for a directed recipient but sent somewhere else. I know that if it were meant for me, I'd be fighting to claim it too.
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